289 F.

3d 13

Richard J. NADEAU, Jr., Petitioner, Appellant,

v.
James MATESANZ, Respondent, Appellee.
No. 01-2288.

United States Court of Appeals, First Circuit.

Heard April 4, 2002.
Decided April 29, 2002.

Paul M. Freitas for appellant.

Linda A. Wagner, Assistant Attorney General, with whom Thomas F.
Reilly, Attorney General, was on brief, for appellee.
Before SELYA, Circuit Judge, STAHL, Senior Circuit Judge, and
LYNCH, Circuit Judge.
STAHL, Senior Circuit Judge.

Appellant Richard Nadeau appeals from the district court's denial of his petition
for writ of habeas corpus. In March 1996, a Middlesex Superior Court jury
convicted Nadeau of two counts of burglary, three counts of receiving stolen
property, and one count of receiving a stolen motor vehicle. Appealing his
convictions, Nadeau argued inter alia that he could not lawfully be convicted of
both the burglary and the receiving of the stolen property. On April 2, 1999, the
Massachusetts Appeals Court agreed with Nadeau's argument and vacated the
possession of stolen property convictions but affirmed the remaining
convictions. Commonwealth v. Nadeau, 46 Mass.App.Ct. 1121, 708 N.E.2d 154
(1999) (table).1 On June 3, 1999, the Massachusetts Supreme Judicial Court
denied Nadeau's application for further appellate review. Commonwealth v.
Nadeau, 429 Mass. 1109, 712 N.E.2d 99 (1999) (table).

On June 25, 2000, Nadeau filed a petition for writ of habeas corpus pursuant to
28 U.S.C. 2254, asserting three grounds of error. The district court denied the
petition on August 21, 2001, but issued a certificate of appealability on
September 18, 2001. In this appeal, Nadeau continues to press two purported

grounds for relief. First, he maintains that the trial judge's instructions to the
jury violated his constitutional right to present a defense and to have his guilt
determined by a jury of his peers. Second, he contends that the Massachusetts
Appeals Court erred when it chose merely to vacate the convictions for
possession of stolen property, and should instead have ordered a new trial.2
Finding neither of these arguments meritorious, we affirm.
I.
3

At trial, Nadeau's theory of defense consisted of two main components. First,

he offered an alibi to account for his whereabouts during the times that the
burglaries took place. Second, he argued that someone else, namely, his friend
Michael Farese, had actually stolen the goods that the police recovered during
the search of Farese's apartment, where Nadeau had been staying. When the
time came to instruct the jury, the trial judge offered a standard charge
regarding reasonable doubt. Specifically, the judge stated,

The question is, has the government proved beyond a reasonable doubt that Mr.
Nadeau did certain things. He is the only defendant. You are not to focus on
whether there were or should have been anyone else accused of these offenses.
The question is, has the government proved beyond a reasonable doubt that Mr.
Nadeau is guilty.

Nadeau objected to this instruction at trial, arguing that it was "confusing and
contradictory" and, in essence, told the jury to ignore Nadeau's arguments
regarding the possible culpability of Farese. On habeas review, the district
court rejected Nadeau's claim that the trial court's failure to modify or correct
the jury instructions violated his constitutional rights. Nadeau's appeal is
governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), 28
U.S.C. 2254. Therefore, in order to prevail, Nadeau must show that the state
court decision was contrary to federal constitutional law or an unreasonable
application of clearly established federal law as determined by the Supreme
Court. Id. 2254(d)(1). We review the district court's denial of habeas relief de
novo. See Almanzar v. Maloney, 281 F.3d 300, 303 (1st Cir.2002).

Nadeau has not offered any Supreme Court case that would suggest that the
jury instructions were constitutionally inadequate. The reasonable doubt
instruction offered by the trial judge closely parallels a model federal
instruction,3 and the validity of comparable instructions has been upheld on
previous occasions.4 Furthermore, we have not independently identified
anything in the instruction chosen by the state court judge that runs afoul of the
minimum constitutional requirements identified by the Supreme Court.

Therefore, Nadeau's argument that the Appeals Court's affirmance of the trial
court's instruction was an "unreasonable application" of Supreme Court
precedent must fail. 5 See 28 U.S.C. 2254(d)(1).
II.
7

We can likewise dispose of Nadeau's second argument without extensive

discussion. Nadeau claims that the Supreme Court's decision in Milanovich v.
United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961), requires the
lower courts to grant a defendant a new trial when he is convicted of both a
theft and possession of stolen property stemming from the same incident. In
reaching the conclusion that Nadeau's argument was without merit, the
Massachusetts Appeals Court relied upon Commonwealth v. Nascimento, 421
Mass. 677, 683-84, 659 N.E.2d 745, 749-50 (1996), in which the Massachusetts
Supreme Judicial Court explained that Milanovich has been limited by the later
Supreme Court opinion in United States v. Gaddis, 424 U.S. 544, 96 S.Ct.
1023, 47 L.Ed.2d 222 (1976). Other courts of appeals have concurred in this
assessment, and accordingly have cited Gaddis as the controlling Supreme
Court pronouncement on this issue. See United States v. Brown, 996 F.2d 1049,
1055 (10th Cir.1993) (citing cases from eight other circuits for the proposition
that Milanovich has been de facto overruled by Gaddis).

In light of this overwhelming consensus, we are unconvinced that the decision

of the Massachusetts Appeals Court "involved an unreasonable application of[]
clearly established Federal law." 28 U.S.C. 2254(d)(1).6 Therefore, we agree
with the district court that this assignment of error lacks merit.

III.
9

Accordingly, we affirm the district court's decision to dismiss the appellant's

petition for habeas relief.

Notes:
1

See generally United States v. Trzcinski, 553 F.2d 851, 853 (3d Cir.1977)
("Traditionally, receipt of stolen goods has been a crime distinct from the theft.
Under the general view, a thief who actually carried away the goods could not
`receive' them from himself. This principle is based either upon the theory of
avoiding the infliction of a double penalty or upon the philosophic
consideration that a single act may not constitute both the larceny and the
receiving. An accessory, however, may be guilty of both larceny and receipt of

stolen goods. See 2 F. Wharton, Criminal Law and Procedure 576 (12th
ed.1957), and R. Perkins, Criminal Law 321 (1969). But these general
observations are not controlling because ... the question is one of statutory
construction, not common law distinctions.").
2

The third issue raised by Nadeau in his original petition, but not presented on
appeal, concerned the denial of his motion to suppress the confession he made
to the police on the date of his arrest

A widely accepted federal pattern jury instruction provides:

You are here to determine whether the government has proven the guilt of the
defendant[s] for the charge[s] in the indictment beyond a reasonable doubt. You
are not called upon to return a verdict as to the guilt or innocence of any other
person or persons. So, if the evidence in the case convinces you beyond a
reasonable doubt of the guilt of Defendant[s] _____ for the crime[s] charged in
the indictment, you should so find, even though you may believe that one or
more other unindicted persons are also guilty. But if any reasonable doubt
remains in your minds after impartial consideration of all the evidence in the
case, it is your duty to find Defendant[s] ______ not guilty.
O'Malley, et al., Federal Jury Practice and Instructions, 12.11 (2000).

See United States v. Dennis, 645 F.2d 517, 522-23 (5th Cir.1981), overruled on
other grounds by United States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 88
L.Ed.2d 814 (1986).

As a practical matter, we are also not convinced that Nadeau's ability to present
his defense was compromised by the jury instruction. As the district court
noted, "The instruction tells jurors to ignore whether anyone else wasaccused
(e.g., charged/indicted) with the crimes, not whether they actually committed
the crimes." In other words, the instruction directed the jurors to render a
verdict of not guilty unless they were convinced beyond a reasonable doubt that
the defendant before them, and not some other person, had committed the
crimes at issue in the case.

We need express no view regarding what, if any, lingering forceMilanovich

may have in light of the Supreme Court's later decision in Gaddis. For purposes
of habeas review, it is sufficient to rest our decision on the ground that the
Massachusetts Appeals Court's application of the remedy supplied by Gaddis
rather than Milanovich is not unreasonable.